Judge allows Cape Wind to keep lease, orders review for whales

In a series of major legal decisions on the proposed Nantucket Sound wind farm, a federal judge has thrown out most of the challenges to the Department of Interior’s approval of the project but sent two findings on birds and whales back to federal agencies for further action.

In a series of major legal decisions on the proposed Nantucket Sound wind farm, a federal judge has thrown out most of the challenges to the Department of Interior’s approval of the project but sent two findings on birds and whales back to federal agencies for further action.

“Today’s decision was very strong,” Cape Wind spokesman Mark Rodgers said, adding that it allows the company to move forward with financing the project, estimated to cost $2.6 billion.

In his 88-page opinion, U.S. District Court for the District of Columbia Judge Reggie Walton found in favor of the Interior Department and Cape Wind on the majority of the claims brought by project opponents, including the the Alliance to Protect Nantucket Sound, the town of Barnstable and the Wampanoag Tribe of Gay Head (Aquinnah.) The claims were part of four separate lawsuits that had been consolidated into one case.

“Judge Walton rejected a long list of legal claims project opponents had raised, including arguments over navigational safety, alternative locations, alternative technologies, historic preservation, Native American artifacts, sea turtles, and the adequacy of the project’s environmental impact statement and biological opinions,” Cape Wind officials wrote in a statement.

The Interior Department approved the 130-turbine wind farm in 2010, after almost a decade of review, ruling that the impacts from the project would be mostly minor.

Opponents have claimed that the approval of the project was rushed, influenced by political pressure and violated the Endangered Species Act, the Migratory Birds Treaty Act and other federal laws.

After the judge’s decision was issued Friday, the project’s primary opposition group saw victory the part of the ruling that federal agencies must re-examine findings related to whales and birds.

“We won on the environmental violations and its a major setback for Cape Wind,” said Audra Parker, president of the Alliance. “The court has sided with us in acknowledging that the federal agencies have violated major environmental laws.”

Walton ordered that the National Marine Fisheries Service issue an “incidental take” permit for right whales, which is required if an entity is likely to hurt, harass, kill or affect the habitat of an endangered species.

Although the agency found that the project be unlikely to adversely affect right whales NMFS did not state that a “taking” would not occur or was not anticipated, Walton wrote.

“Accordingly, because incidental take ‘may occur,’ … the NMFS was required to include an incidental take statement with its biological opinion, and its failure to do so was arbitrary and capricious,” Walton wrote.

He also ruled that the federal Fish and Wildlife Service must say whether it determined on its own that it would be unreasonable and imprudent to shut down the wind turbines at certain times of the year to protect migratory birds.

“While it might be true that FWS grappled with the issues raised by the (Bureau of Ocean Energy Management,) it is not clear from the reasonable and prudent measures issued by the FWS that its ultimate decision was based on its independent determination, or whether the FWS merely deferred to determinations made by the BOEM and Cape Wind,” Walton wrote.

The findings show that the federal government took shortcuts in reviewing the project, Parker said.

“They accepted Cape Wind’s analysis,” she said about the wildlife agency. “They didn’t look at it independently.”

Rodgers and Cape Wind supporters said Friday that those findings were not enough to stop the project from moving forward and would be easily addressed by the two agencies.

“The decision as I read it is a clear victory for Cape Wind,” said Kit Kennedy, a lawyer for National Resources Defense Council, which supports Cape Wind.

Of the four consolidated lawsuits the judge dismissed at least a dozen claims, including some that could have killed the project, Kennedy said.

Walton rejected challenges to the environmental review of the project under the National Environmental Policy Act which would have required a third review be performed, Kennedy said. He also rejected claims related to the Coast Guard, navigation and historic review, Kennedy said.

“On right whales, the court found nothing wrong with the way that the government viewed the right whale issues in relation to the project and indeed found that the government review of that issue as a whole is reasonable,” she said.

Similarly the judge is merely asking FWS to take another step in clarifying that its findings were the agency’s own, she said.

Rodgers said the remaining requirements of the federal agencies would not be a hurdle in convincing financing partners to come onboard.

“There are many stakeholders that have been waiting for this decision,” he said.

Parker, however, argued that if the federal wildlife agency sticks to an earlier recommendation that the turbines be shut down during certain times to protect birds it could spell financial disaster for Cape Wind.

“We don’t have to win them all,” she said about the claims. “Cape Wind does.”

Parker said Alliance officials are evaluating whether they would appeal the judge’s other rulings.

A spokeswoman for the NMFS said the agency is reviewing the judge’s order. A FWS spokeswoman said agency officials hadn’t seen the decision and so couldn’t comment on it.